Watchdog accuses SNP ministers of 'factual discrepancies' over Nicola Sturgeon inquiry row

Opposition politicians called the Scottish Government ‘dishonest and dysfunctional’

Scotland’s transparency watchdog has accused the Scottish Government of “factual discrepancies” and misrepresentation relating to a legal battle over evidence given to an inquiry into Nicola Sturgeon.

Ministers previously took the Scottish Information Commissioner to court in a bid to avoid publishing all evidence submitted to a probe into whether Ms Sturgeon broke the ministerial code when she was first minister.

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This followed a Freedom of Information (FOI) request by a member of the public. After ministers lost their Court of Session appeal, the commissioner then ordered them to publish their legal advice in response to a further FOI request.

Last month, First Minister John Swinney rejected calls for a judge-led inquiry into what opposition politicians called a “cover up”, and said the Scottish Government had published “101 pages of legally-privileged information”.

John SwinneyJohn Swinney
John Swinney | Fraser Bremner/Scottish Daily Mail/pool/PA

But in a letter to the Government, the commissioner, David Hamilton, expressed his “disappointment in the way that elements of this case have been handled”.

He criticised the Scottish Government’s failure to withdraw its Court of Session appeal “once it was clear there were limited prospects of success”, citing the impact on public funds.

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He argued “where, as in this case, the chances of success are suitably diminished, it could be argued that any additional delay was deliberate, to frustrate the rights of the requester”.

Mr Hamilton added: “As regulator for Freedom of Information (FOI), I was deeply disappointed in the tone of the media statement accompanying the disclosure, which, in my view, misrepresented the facts as disclosed in the information.

“The statement suggested that the ministers had a stateable case throughout the timeline of appeal. As highlighted above, this is not a true or transparent reflection of advice received.

“Ministers’ chances of success diminished considerably over time and attempts to present this otherwise are not what I would expect from a public authority.”

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Mr Hamilton said there were also “some factual discrepancies” by ministers in relation to the accessibility of information. The inquiry into Ms Sturgeon cleared her of breaching the ministerial code over her involvement in the Alex Salmond saga in 2021.

Labour MSP Martin Whitfield said “This is an extraordinary intervention from the Information Commissioner and the SNP cannot ignore it.

“These utterly scathing comments lay bare how dishonest and dysfunctional this SNP Government has been. It’s clear there is a corrosive culture of secrecy and cover-up at the heart of the SNP.

“The SNP Government has wasted time and taxpayer money trying to keep the truth under wraps and we deserve to know why.”

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Tory MSP Craig Hoy said: “This is a devastating verdict from the Information Commissioner. He has rightly rebuked the SNP Government for how they acted in this case, which had all the hallmarks of the nationalists’ 17 years in charge.

“They typically acted like they knew best and continued to squander taxpayers’ money on an unwinnable case, while also furiously working out how they could spin it to the public. The SNP had to be dragged kicking and screaming into releasing this legal advice and serious questions remain for them to answer.

“It is hugely concerning that the commissioner believes they misrepresented the facts in this case and that there was a slapdash approach to submissions.

“This reeks of SNP secrecy and cover up. Taxpayers whose money has been wasted on this cynical action deserve full transparency.”

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A Scottish Government spokesperson said: “The substantive points in the commissioner’s letter were fully addressed in a statement to the Scottish Parliament on October 29, 2024.”

In that statement, Mr Swinney said: “Ministers were presented with legal advice that supported a court challenge and the court took the view that the matter was a ‘sharp issue of statutory interpretation’. In short, it was a perfectly rational decision by ministers to go to court.

“So, the original accusation that has been made in this case, that ministers acted against legal advice in deciding to challenge in court the original decision of the Information Commissioner, has been disproved by the publication of the legal advice at the weekend.”

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